15 Fla. L. Weekly Supp. 375b
Insurance — Personal injury protection — Demand letter — Sufficiency — Demand letter was not deficient for failing to calculate exact amount to be paid after application of deductible and co-payment — Coverage — Medical expenses — Reasonable, related and necessary expenses — Affidavit of claims adjuster creates genuine issue of material fact as to reasonableness of those charges to which adjuster testified — Jury will decide reasonable charge between amount testified to by adjuster and amount billed — Insurer is estopped from denying benefits for dates prior to date IME cutoff letter was sent where insurer failed to timely furnish notice of result of independent medical examination opining that further treatment would not be reasonable
FEEL BETTER REHAB, INC. A/A/O GUILLERMO VIDAL, Plaintiff, v. UNITED AUTOMOBILE INS. CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-393 SP-24. February 11, 2008. Darrin P. Gayles, Judge. Counsel: Richard Shuster, Shuster & Saben, LLC, Miami. Raquel Tapanes.
ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON DEMAND LETTER ISSUES
THIS MATTER having come before the Court for hearing on February 4, 2008 on Plaintiff’s Motion for Partial Summary Judgment, and on Defendant’s Motion for Summary Judgment and the Court having reviewed the Court file, including all record evidence presented, the parties’ motions and supporting documents, and the Court having heard argument of counsel and being otherwise fully advised in the premises.
It is hereby ORDERED and ADJUDGED as follows:
1. On the issue of STANDING Summary Judgment is
X Granted. (During the hearing this issue was not disputed by Defendant).
2. On the issue of TIMELY BILLING Summary Judgment is
X Granted. (During the hearing this issue was not disputed by Defendant).
Denied without prejudice
Affirmative Defense withdrawn (or not raised) by Defendant & will not be issue for trial
Continued.
3. On the issue of BILLING ON PROPER FORM (PROPER BILLING) Summary Judgment is
X Granted. (During the hearing this issue was not disputed by Defendant).
4. On the issue of COMPLIANCE WITH DEMAND LETTER STATUTE, the Court has reviewed the demand letter submitted by Plaintiff’s counsel and affidavit of Christopher Gonzalez, the legal assistant who assisted in the preparation and mailing of the demand letter.
The Court notes that the Demand letter was addressed to the designated person for receipt of demand letters, was mailed to the correct address, stated the dates of service, listed the name of the medical provider, claimant, insured, and claim number, and included the total amount of the charges on the front page of the demand letter. Attached to the demand letter was the assignment of benefits, a ledger, and the HCFA/CMS — 1500 claim forms.
The Defendant contends that because the Plaintiff did not calculate the exact amount to be paid, i.e., the total bill less the applicable deductible at 80%, the demand does not comply with the statute. The Plaintiff contends that it cannot calculate the exact amount United had to pay because it was not furnished with a declarations page showing whether the policy included a deductible or provided med-pay benefits. Plaintiff further contends that the F.S. 627.736(11) does not require the demand to calculate the exact amount the Defendant has to pay after application of deductible and 80%.
The Court does not find that the Plaintiff is required to list the amount due after application of co-payment, i.e, to list the 80% amount. The Court finds that the Plaintiff’s demand letter complied with F.S. 627.736(11). In the alternative, Plaintiff’s demand letter substantially complied with the demand letter statute and there was no prejudice to the Defendant caused by the mere failure to perform the simple arithmetic of calculating 80% of the billed amount. Accordingly on the issue of demand letter Plaintiff’s motion for summary judgment is granted and Defendant’s motion for summary judgment is denied.
5. On the issue of WHETHER AN ACCIDENT OCCURRED Summary Judgment is
X Granted. (During the hearing this issue was not disputed by Defendant).
6. On the issue of whether SERVICES WERE LAWFULLY RENDERED Summary Judgment is
X Granted. (During the hearing this issue was not disputed by Defendant).
7. On the issue of whether the charges for the services rendered were REASONABLE and customary Summary Judgment is granted in part. Plaintiff’s counsel acknowledges that the affidavit of the claims adjuster creates a genuine issue of material fact. The Court finds that for those services which the adjuster testified to a reasonable charge the amount listed in the adjuster’s affidavit shall be the floor for the service and the jury shall decide what amount between the adjuster’s affidavit and the amount billed is reasonable.
8. On the issue of whether the services rendered were MEDICALLY NECESSARY and RELATED, Summary Judgment is granted in part and denied in part. The Court has reviewed the affidavit of Don Morris, D.C. who performed a “Independent Medical Examination” and a “Peer Review.” The IME was performed on July 25, 2006. United did not send notice of the results of the Chiropractic IME to the provider or to the patient’s attorney until September 5, 2006. While the affidavit of Dr. Morris would raise a genuine issue of material fact as to the medical necessity of chiropractic treatment after July 25, 2006, United has no explanation for why it waited until September 5, 2006, to advise the provider and patient of the results of the IME.
The I.M.E. Cutoff letter dated September 5, 2006, stated in pertinent part:
“On July 25, 2006 the above noted claimant/patient was examined by Dr. DON MORRIS DC. The Independent Medical Examination (IME) physician has advised that in his/her opinion, and further CHIROPRACTIC treatment would not be reasonable, related, or medically necessary. Please be advised that United Automobile Insurance Company hereby suspends benefits under this licensing chapter for any services rendered after July 25, 2006.”
The IME cutoff letter is silent as to those bills for services rendered prior to July 25, 2006. Plaintiff argues that a reasonable insured would construe the silence as acknowledgement that the carrier was not disputing payment of the services rendered before July 25, 2006. Further, had United mailed the IME cutoff letter in a timely fashion the patient or provider could have curtailed treatment based upon the IME report. If United intended to utilize the IME report to cutoff chiropractic treatment it should have furnished the report in a timely fashion so that patient and provider could make an informed decisions about further treatment that the carrier would likely deny. This Court finds that United, having failed to timely furnish notice of the results of the IME exam, is estopped from denying benefits for dates prior to the September 5, 2006, IME cutoff letter. The IME cutoff shall be effective September 5, 2006. Accordingly, there is no genuine issue of material fact as to the medical necessity of services rendered through September 5, 2006, and summary judgment is granted for the Plaintiff on the issue of medical necessity and related for dates of service through September 5, 2006.
The Court finds that the IME cutoff letter raises a genuine issue of material fact with respect to treatment rendered after September 5, 2006, and denies summary judgment on the issues of medical necessity and related for services subsequent to September 5, 2006.
